Expertise Detail

Foreign Investment Group

Non-Canadian investors and Canadian businesses must be alert to the impact the Investment Canada Act may have on an investment in a Canadian business by a non-Canadian. Although Canada welcomes foreign investment, in certain circumstances, an international investor will be required to receive approval from the Canadian government, which will typically include agreeing to give undertakings to secure approval. It may also be critical to a foreign investor to understand how to navigate and approach a national security review in Canada.

Incomparable Expertise

McCarthy Tétrault has one of the leading and top ranked foreign investment review practices in Canada. We have helped a wide range of Canadian and foreign clients, including state-owned enterprises and sovereign wealth funds, cut through the complex maze of issues to clear deals and minimize regulatory risk under the Investment Canada Act. Our experience spans clearing Canada’s largest foreign acquisition, to acting on challenging national security reviews.

Clients in every sector turn to McCarthy Tétrault to address their foreign investment needs. International investors and global law firms, including from the United States, Europe, China, Middle East, Africa and Asia, regularly seek our advice in handling Investment Canada Act and national security reviews before both the Minister of Innovation, Science and Economic Development and, in the case of Canadian cultural businesses, the Minister of Canadian Heritage.

Our foreign investment specialists guide you through the complexities of the Investment Canada Act which apply to acquisitions of and investments in Canadian businesses by non-Canadian investors. Our team are specialists in the approval process, national security issues and investments by state-owned enterprises. We frequently are involved in the engagement with the Canadian government at the deepest level and have successfully navigated government relations and public relations aspects of foreign investment review to secure approval.

Net Benefit Review

We frequently act for clients on transactions which trigger the Investment Canada Act’s “net benefit to Canada” review. We represent clients before both the Investment Review Division and, for Canadian cultural businesses, the Cultural Sector Investment Review directorate and negotiate undertakings to secure approval. Post-transaction, we also assist our clients with compliance reports on their undertakings with the Canadian government.

National Security Review

Although rejections of investments and enforcement activities under the Investment Canada Act are rare, they appear to be escalating. In 2009, the Act was amended to give the Canadian government the power to review any investments (no matter the size) by non-Canadians on national security grounds. A national security review can be undertaken for an acquisition of a majority or minority investment in an existing Canadian business or the start-up of a new business in Canada. These changes to the Act show that the Canadian government is prepared to resist investments that are contrary to evolving public policy. We have wide-ranging and in-depth experience and expertise in successfully navigating the pitfalls of the foreign investment review process.

Investments by State-Owned Enterprises

Investments in Canadian businesses by foreign state-owned enterprises (SOEs) may receive greater scrutiny than investments by non-SOEs. With recent changes to the legal and policy framework regulating SOE investments, the Canadian government has made it clear that investments by SOEs will be assessed differently than those by non-SOE investors. In light of the increased focus on SOEs, it is incumbent on SOEs to address legal and political issues very early on in the planning process. We have provided our clients with valuable guidance to successfully navigate the regulatory review process and secure approval in Canada.

Investments in Cultural Businesses

Foreign investment in Canadian cultural businesses (which includes book, newspaper or magazine publishing, film, video or music production and distribution, television and radio) often raise unique challenges. The Department of Canadian Heritage’s review of an investment in Canadian cultural businesses will take into account the government’s policies which, in some areas, limit investments by foreign investors. We have extensive experience working with clients on investments that raise cultural issues involving industries such as books, magazines, videos, video games, music, film and television.

Other Foreign Ownership Restrictions

Our firm also has extensive experience dealing with the full panoply of specialized laws that impact foreign ownership in a number of sectors, including aviation, financial institutions, telecom, broadcasting and publishing.

Industry Leadership

Our knowledgeable and widely published lawyers have written and lectured extensively on all aspects of foreign investment law, actively participate in (and founded) the Foreign Investment Review Committee of the Canadian Bar Association and have and continue to hold executive positions in the National Competition Law Section of the Canadian Bar Association which oversees the Foreign Investment Review Committee. Mr. Borgers, one of the leaders of the Foreign Investment Group is the contributing editor of Law Business Research’s Getting the Deal Through - Foreign Investment Review 2017, the world’s only publication that surveys international foreign investment and national security review regimes. The Canada chapter of this global publication may be accessed here. Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through: Foreign Investment Review 2017, (published in February 2017; contributing editor: Oliver Borgers, McCarthy Tétrault LLP). For further information please visit www.gettingthedealthrough.com.